Medical professionals have a code of ethics that they have to adhere to in the course of their work. If they go against such ethics, then that is regarded as medical malpractice. This happens, for example, when a patient gets injured due to the negligence of a doctor.
Many victims of medical malpractice do not even know that they can sue those whose negligence caused the injuries. Some also feel embarrassed in the circumstances where the concerned medical practitioner is a family doctor. There are also those who do not want to sue, choosing instead to bear the injuries caused by negligent doctors. Medical malpractices can result in all manner of injuries, ranging from small injuries to fatal injuries. In case the patient dies, it will be upon their family to take up the matter.
The patient can sue the doctor for malpractice or negligence and for the patient to be compensated he/she must prove that:
- There existed a patient-doctor relationship
- The nature of medical care the plaintiff (patient) was owed by the doctor in that particular situation.
- The doctor failed to perform his/her duty as required by the code of ethics
- The patient got injured
- The injury resulted from the doctor’s failure (or negligence)
When a patient or the family of the patient is convinced that all the above conditions are fulfilled in his/her case, the next step is to sue the doctor. Malpractice cases usually go through six stages as described here.
Consultation With an Attorney
When a patient or the family of the patient cannot handle the case by themselves, the first step will be to hire a medical malpractice attorney who will handle the case. The victim will discuss with the attorney all the matters concerning the case. He will have to explain why he thinks the doctor, the health care professional, the hospital, or the health organization was at fault. Talking to an attorney is important because he will use his experience to judge the merits of the case.
This is the stage where the victim gives the attorney all the necessary documents in his possession. The attorney will also have to review the medical records available in the hospital, including admission records, visiting nurses’ records, the doctor’s records, and any other records that are pertinent to the case. All these records will help the attorney in figuring out what might have gone wrong and to prepare himself for the court case.
Choosing an attorney with a medical background can be advantageous because he will be able to understand the medical jargon and can easily pinpoint where the problem is. After the attorney gathers all the records, he will contact some medical experts, referred to as expert witnesses, who are conversant with the medical field to write a letter that supports the victim’s case. The experts can be medical professors or senior surgeons. The attorney will then proceed and file the case after which a tribunal will be formed to hear it.
A tribunal must first hear the cases of medical malpractices before the cases can proceed. A tribunal is composed of an attorney, a physician, and a judge. The physician should have the same qualifications as the accused doctor (defendant). The tribunal hears both parties and looks at the preliminary evidence which they use to gauge whether the defendant has a case to answer. It is the duty of the tribunal to determine if the presented evidence is substantiated and enough to make the defendant liable or whether the plaintiff’s claims are medical results that are merely unfortunate. If the tribunal supports the doctor, the victims can still proceed with the case but he/she must post a bond, and his/her lawyer will submit an Affidavit of Merit or Offer of Proof to show that the case qualifies as medical malpractice.
At this stage, the plaintiff and the defendant are given the opportunity to get relevant information from one another. They are allowed to ask for documents and any important records from one another. This is the litigation stage where the plaintiff will be questioned under oath (deposed) by the attorney representing the doctor (defendant). Similarly, the defendant will also be questioned under oath by the victim’s attorney. After the discovery stage, there will be two options, settlement or trial.
This is when the doctor, hospital, or medical facility/organization accepts liability and agrees to compensate the victim. The attorneys for both sides will agree on a fair value to be awarded to the victim as damages. If the insurance company or the doctor refuses to accept the settlement route, then the case goes to full trial. The plaintiff’s attorney will file a lawsuit called a Writ or Complaint.
As always the case in any trial, the burden of proof lies on the plaintiff. Both parties will have a chance to argue in court and produce evidence to support their claims. The experts that had been hired earlier will be the witnesses and will have to testify before the court. Depending on how each side presents their arguments, the judge will either find the doctor innocent or guilty, in which case the victim will be awarded cash damages.